Antitrust and Trade Regulation Commons^™

Beyond Transparency: The Semantics Of Rulemaking For An Open Internet, Reza Rajabiun

Indiana Law Journal

In trying to promote the development of an open Internet, the U.S. Federal Communications Commission (FCC) has primarily tried to encourage network providers to be transparent about their traffic management practices and quality of service prioritization policies. Dominant network operators have successfully challenged this minimalist approach to addressing end-user concerns about the rise of a two-tiered Internet, motivating the FCC to engage in yet another public consultation process to assess its future approach to the problem. This article maps the debate using Natural Language Processing (NLP) tools that allow us to build a systematic picture of the positions of the …

The Double-Edged Sword Of Health Care Integration: Consolidation And Cost Control, Erin C. Fuse Brown, Jaime S. King

Indiana Law Journal

The average family of four in the United States spends $25,826 per year on health care. American health care costs so much because we both overuse and overpay for health care goods and services. The Affordable Care Act’s cost control policies focus on curbing overutilization by encouraging health care providers to integrate to pro-mote efficiency and eliminate waste, but the cost control policies largely ignore prices. This article examines this overlooked half of health care cost control policy: rising prices and the policy levers held by the states to address them. We challenge the conventional wisdom that reducing overutilization through …

Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford

UF Law Faculty Publications

The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …

Reregulation And The Regulatory Timeline, Peter Molk, Arden Rowell

UF Law Faculty Publications

Regulation is often casually conceived of as functioning like a binary on/off switch: as if an area, issue, or industry is either regulated or not. While this binary model of regulation can be useful, it also decontextualizes regulatory decisions from their position in time, and thus obscures important ways in which regulators are constrained and incentivized by past and future decisions. As an alternative, we present a timeline approach to regulation. The timeline approach is particularly helpful in illustrating the ways that earlier regulatory decisions create vestigial effects for later related decisions, and for highlighting the informational advantage that later …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

International Antitrust, Paul Schoff, Katrina Groshinkski, Eric White, Maria Cecilia Andrade, Rafaela P. De Calcena, Adam S. Goodman, Peter Wang, Yizhe Zhang, Laurie-Anne Grelier, Peter Camesasca

The International Lawyer

No abstract provided.

Raj Rajaratnam: Cheater (Revised), Alicia Baker

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

Deterring Innovation: New York V. Actavis And The Duty To Subsidize Competitors' Market Entry, Joanna Shepherd

Faculty Articles

This Article examines a relatively new business strategy in the pharmaceutical market -- "product hopping" or "product replacement" -- in which brand pharmaceutical companies shift their marketing efforts from a drug nearing the end of its patent period to a new, substitute drug with a longer patent life. In July 2015, the Second Circuit issued an opinion in the first appellate case addressing pharmaceutical product replacement, New York ex rel. Schneiderman v. Actavis PLC. This Article explains that product replacement is the predictable business response to the incentives created by patent law and state substitution laws, and withdrawing an …

Merger And Acquisition Due Diligence Part Ii- The Devil In The Details, James A. Sherer, Taylor M. Hoffman, Kevin M. Wallace, Eugenio E. Ortiz, Trevor J. Satnick

Richmond Journal of Law & Technology

Our prior scholarship examined the legal and technical challenges involved in modern Merger & Acquisition ("M&A") due diligence practices associated with transactions ("Deals"), given recent but steady advances in technology and related increases in sophistication seen in Deal participants-primarily the organizations or assets targeted (the "Targets") as part of the Deal, and the organizations that pursued and/or resulted from the Deal (the "Acquirers"). We then proposed a framework addressing five particular verticals of interest and concern: data privacy ("DP"), information security ("IS"), e-Discovery, information governance ("IG"), and the due diligence and record keeping associated with the Deal itself ("Deal Information") …

Overlapping Financial Investor Ownership, Market Power, And Antitrust Enforcement: My Qualified Agreement With Professor Elhauge, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

As is well known among financial economists but not previously recognized within the antitrust community, large and diversified institutional investors such as BlackRock, Fidelity, State Street, and Vanguard collectively own roughly two-thirds of the shares of publicly traded U.S. firms overall, up from about one-third in 1980. Recent economic research involving airlines and banking raises the possibility that overlapping ownership of horizontal rivals by diversified financial institutions facilitates anticompetitive conduct throughout the economy, and that the problem has been growing for decades, unnoticed until now. This response to an article by Professor Einer Elhauge, explains why it may be more …

A Profile Of Bio-Pharma Consolidation Activity, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

Firmly Grasping The Knife: An Investigation Of The Asymmetric Application Of Chinese Antitrust Law As A Protectionist Tool, Jillian Bray

Cardozo Journal of International and Comparative Law

The note argues that China's Antimonopoly Law (AML), while modeled after Western antitrust laws, is often applied in a protectionist manner, disproportionately targeting foreign companies to shield domestic industries and state-owned enterprises. This selective enforcement contrasts with the U.S. antitrust system, which prioritizes fair competition and consumer welfare. The note advocates for aligning AML enforcement with international standards to promote a level playing field and foster long-term economic growth.

Panel 1: Issues In The U.S. For Chinese Businesses, Cindy Yang, Jamie D. Underwood, Mark Cohen

Cardozo Journal of International and Comparative Law

The symposium examines the bidirectional intellectual property (IP) challenges between the U.S. and China, highlighting that while Chinese businesses face significant IP issues in the U.S., American companies also encounter complexities in China. The discussion emphasizes the evolving nature of IP litigation in both countries, with a focus on fashion and brand protection. Panelists provide insights into strategies for navigating these challenges, including the use of design patents, trademarks, and trade dress, as well as the role of administrative bodies like the U.S. International Trade Commission (ITC).

Recalling First Principles: The Importance Of Comity In Avoiding Antitrust Imperialism, J. Franck Hogue

Washington and Lee Law Review

No abstract provided.

The Meaning Of "Direct" Effect On Domestic Commerce Under The Foreign Trade Antitrust Improvements Act, John J. Miles

Washington and Lee Law Review

No abstract provided.

The Abstract Void In Practice: Has The Statutory Business Judgment Rule Changed The ‘Acoustic Separation’ Between Conduct And Decision Rules For Directors’ Duty Of Care?, Sergio Alberto Gramitto Ricci, Jake Miyairi

Faculty Works

A recent outpouring of director sentiment claims that the stringency of directors’ duty of care is stifling entrepreneurial growth. This article explores whether the statutory business judgment rule has enhanced directors’ protection for legitimate commercial decisions, or clarified their liability for due care — the two express justifications behind its enactment. Directors’ protection for entrepreneurial decision-making cannot be amplified without broadening the pre-existing abstract void between the duty of care — as a conduct rule — and the general law ‘business judgment principle’ — as a decision rule. But Parliament’s desire to clarify and confirm the existing general law business …

A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison

UF Law Faculty Publications

This Article demonstrates the relationship between socio-economics and antitrust law. It uses socio-economics to both deconstruct the current economic foundation of antitrust policy and to suggest ways to improve that policy. There are four steps in this presentation. Part II examines the core elements of the economic approach to antitrust and its shortcomings, if any. For those even moderately versed in economics, it will note that the analysis begins at the most basic level. Obviously, antitrust is designed to make markets more competitive. But that goal is merely a means to the end of greater consumer surplus and allocative efficiency. …

Regulation 2.0: The Marriage Of New Governance And "Lex Informatica", Abbey Stemler

Vanderbilt Journal of Entertainment & Technology Law

Throughout history, disruptive technologies have transformed industry and signaled the destruction or creation of regulatory structures. When crafting regulations, governments often utilize Regulation 1.0 approaches, characterized by top-down design standards that dictate exactly how the regulated must act in order to prevent market failures. Regulation 1.0 increases barriers to entry and decreases the room for business experimentation. Regulation 2.0, by contrast, is a theoretical approach for regulating companies that rely on platform-mediated networks. It marries New Governance theory and the concept of lex informatica. This marriage allows for the collaborative creation of design standards that are then enforced through mediating …

The Jury Trial In Antitrust Cases: An Anachronism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Seventh Amendment of the United States Constitution provides in relevant part that "[i]n suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved." The jury trial has long been the foundation of the American civil justice system and is deeply embedded in American culture. As the Supreme Court has observed, "[m]aintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …